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TechnoratiAny Legal System in Which a Supposed Deadly Terrorist Goes Free by Admitting His Crime is a Disgrace.
With the guilty plea and sentencing of Australian David Hicks before a military commission at Guantanamo Bay last week, the United States achieved something it had not attempted since Nuremberg: the conviction of a foreign citizen in a military tribunal for violation of the laws of war. As in Nuremberg, it was not just the detainee on trial but the military commission system itself. The legitimacy of the enterprise hinges on whether the U.S. demonstrates to the world that it can provide impartial justice to those it accuses of war crimes.
I traveled to Guantanamo to observe the Hicks proceedings, and to say that they lacked the dignity and gravitas of Nuremberg is to engage in colossal understatement. The military commissions have been a profoundly unserious legal exercise from the start. The prison at Guantanamo was fashioned as an island outside the reach of U.S. law, and the commissions were devised to provide an illusion of legal process.
If that sounds extreme, consider the Hicks case. The defendant traveled to Pakistan and Afghanistan, joined with extremists and was captured in December 2001. Defense Secretary Donald H. Rumsfeld later said he was among the world's most dangerous terrorists.
Hicks was first charged by a military tribunal in 2004 - accused of conspiring to commit acts of terrorism, attempted murder and aiding the enemy - but the executive order creating those tribunals was declared illegal by the Supreme Court last year. So Congress passed the Military Commissions Act, and Hicks was charged again, this time solely with providing "material support" to a designated terrorist organization. He struck a plea bargain.
Last Friday night, after a jury of senior military officers sentenced Hicks to seven years in prison, we all learned the details of that agreement: Hicks will serve a mere nine months - a sentence more in keeping with a misdemeanor than with a grave terrorist offense.
This stunning turn of events highlights a cruelly ironic feature of detention at Guantanamo. In an ordinary justice system, the accused must be acquitted to be released. In Guantanamo, the accused must plead guilty to be released - because even if he is acquitted, he remains an "enemy combatant" subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out.
And so, the lone Guantanamo detainee who has admitted guilt will be in Australia within 60 days and free before the end of the year. Meanwhile, about 385 others who have not been accused of a crime may remain in detention until the cessation of hostilities in the "war on terror" - a distant abstraction, not an actual event.
In the plea deal, Hicks was required to affirm that he had not been "illegally treated" while in U.S. custody, but those words are meaningless. Hicks earlier alleged that he was brutally abused when he was turned over to U.S. forces in Afghanistan. But in the Bush administration's view, that treatment was not "illegal" at the time unless, in the words of the notorious Justice Department memo, it inflicted pain equivalent to "serious physical injury, such as organ failure, impairment of bodily function or death." Thus, in denying that he had been "illegally treated," Hicks in no way denied that he had been abused.
Moreover, in a highly unusual provision, the agreement requires that Hicks not speak to the media for a year. Gag rules are not imposed to prevent people from telling lies; they are imposed to prevent people from telling the truth - in this case, how Hicks was treated after his capture and during his detainment.
What are we to make of this? How did the very first case brought before a military commission - a system we were told was necessary because of the danger and impracticality of prosecuting arch-terrorists in U.S. courts - result in a sentence of only nine months?
If Hicks is even remotely as menacing as the United States once asserted, then the government is grossly negligent to permit his release on these terms. But no one believes that to be the case. Instead, it is widely understood that the government made extravagant claims that simply could not withstand scrutiny. No wonder the administration has fought so vigorously to deprive Guantanamo detainees of the bedrock right of habeas corpus - the right to challenge unlawful detention in court.
This week, the Supreme Court declined to review a challenge to the Military Commissions Act, which stripped federal courts of jurisdiction to hear habeas corpus challenges filed by "enemy combatants." So justice for the detainees at Guantanamo will be delayed for at least one more year. Meanwhile, David Hicks - once deemed among the worst of the worst - will be home and free, an unwitting symbol of our shameful abandonment of the rule of law.
Ben Wizner is an attorney with the American Civil Liberties Union.
© Copyright 2007 Los Angeles Times
19 Comments so far
Show AllThe truth is that many american citizens on the mainland get no more of a fair trial than David Hicks did.
Go into any Superior court in any county in the US and you can see people who are meeting thier lawyers for the first time minutes before they are asked to make a plea to felony crimes.
Most public defenders offices will make no attempt to defend a felony suspect on anything other than a death penalty offense. Unless the defendant can independently come up with an iron-clad proof that they were elsewhere at the time they will get convicted.
In America, you are guilty until proven wealthy. The constitution is something the GOP uses to wipe their asses with.
Paul M
Looking at your resume I'm surprised that you are posting here. I think many Americans in your position would not be posting so openly.
America is imo not as free as some people think..with all the partisan politicing going on here....and the hyper nationalism of some people.
Do you see any chance for Howard to win? He is very clever. Did Australians vote for him because of the strong Australian economy while he was in office?
How do people in Australia feel about Hicks and his family? Hick's father is very outspoken. Are other family members in the news too?
The same will happen with Hicks as with the 4 released to Britain, and the fellow released to Denmark, that is, a ripple in the news.
They come home, there is a news item without comment. The fellows talk some, there are reports -- buried in the pages -- and that is it. The people in question just more or less shut up -- haveÃng once been in the meat grinder, you don't want to go back.
IF any of these people are potential Qutb or Zarahiri clones -- well, this is their bachelors degree and now they will go to work on their masters...
The War on Terror is complete and utter crap, its only use is to keep a level of public fear at a level where they are easier to manipulate.
I don't know whether to cry or reach for a barfbag.
Anyone wonder what Cheney and Howard talked about a couple of months ago when Cheney went over to Australia? I have a DEEP suspicion that the deal that Hicks got was cut then.
By the way, as I remember, DOD Gates testified recently in Congress and recommended the closing of Gitmo. Anybody know if this is getting any traction in Congress?
The gag rule is there because we have a federal election here in Oz later this year. It's a favour to Mr Howard, because his ass-kissing Mr Bush is an election issue.
The Australian government has admitted the gag order won't be enforcable in Australia but of course he will be in prison, presumably in solitary confinement, until after the election later this year. So he is in practice gagged anyway.
If Australian voters are as undiscerning in this case as Canadians are with the seal hunt , our contribution to climate change and our sacred right to beer and barbeques
then this strategy will work.
All it takes for evil to prevail is for good people to do nothing.
Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person's autonomy (achieved by means of (a)); (c) in general, undertaken for the purpose of breaking the victim's will. Note that breaking a person's will is short of entirely destroying or subsuming their autonomy.
In George Orwells prescient novel, 1984, as andrewr points out, is that Big Brother needed to break his will. That is a key distiction about torture as compared with coercion.
Our present government knows full well that they can be charged for crimes against humanity at some point. That is why Alberto Gonzales and Professor Wu were brought in to redefine tortue in the hopes of avoiding any future cases which will most certainly be brought against these monsters.
As with Pinochet, the wheels of justice turn slowy, but I believe that someday, Dick Cheney, George Bush, Donald Rumsfield, and possible others, will be convicted of crimes against humanity.
The gag rule is there because we have a federal election here in Oz later this year. It's a favour to Mr Howard, because his ass-kissing Mr Bush is an election issue.
The Australian government has admitted the gag order won't be enforcable in Australia but of course he will be in prison, presumably in solitary confinement, until after the election later this year. So he is in practice gagged anyway.
The Howard/Bush supporters say it was a great outcome, the guilty plea proves he was a dangerous terrorist. The rest of us recognise it for the sham it was. It was a political fix to get Hicks off the political agenda in the run up to the election as the lack of justice for Hicks was a political embarassment even for Howard. How it will play out from here on remains to be seen.
Our own Devil's Island - they'll have movies about the the victims someday. If they were actually guilty, they would have had trials. That's the dead give-away that most of them were just sold to the guys with the most money - US agents, of course - and it's unlikely that ANY of them were actually 'terrorists'. (As if state-sponsored terrorism is okay, but private ventures aren't - what a joke.)
You're right, Ralph - It is quite a sobering feeling to be able to accurately identify without a shadow of a doubt that this is one of the things that later politicians are going to have to apologise for, like slavery or Japanese internment camps.
Some day pleasure boats will cruise by Guantanamo and hushed travelers will take souvenir pictures of this corrupt place and shudder at what transpired there...
I've said it before on comments in CommonDreams:
Gitmo gets my TripleA (AAA) rating:
As a combat vet of WWII, and 30-year retiree from the federal civil service I find our government's behavior in Guantanamo Bay to be
Appalling, and I am Angry and Ashamed -- and so should we all be!
good point BobH - compare with the British sailors who just got sent back by Iran. They will be hailed as heroes having ahd a nice week being treated well by the Iranians. Hicks on the other hand has been tortured for several years and now has been told not to breathe a word. He has no protection from the Australian government and knows netter than anyone that he could be walking down the street one day and be bundled into the back of a truck and never seen again.
From what I've heard about Guantanamo, I'd say just about anything to get out of there and as far away from it as possible. What happens if when Hicks gets to Australia he tells all? Will he be extradited? Assassinated? Disappeared?
At least do not have to waste our breath making bush look stupid. The reason, as usual, is that he does it for us.
The whole thing reminds me of 1984, where the government will not rest until they make Winston Smith confess. They don't need him to - they have him in custody and can do anything they like to him in terms of torture - but to perpetuate their own existence they *must* have Smith confess.
With Hicks they have to have his confession because without it he can't be shown to be guilty. Why not? Because there was never ever any evidence against him. If there was evidence there would be no need for torture, detention and military trials. They could have tried him in federal court.
The war on drugs is nothing but an excuse for the ATF (one of the most corrupt law enforcement agencies) to run amuck. The war on terror is nothing but an excuse for the US (one of the most corrupt governments in the world) to ride roughshod over international law.
This Administration and the actions of my government are so seriously out of integrity with the Consititution that I cannot see how they hope to get away with it. While I do know the smirking president has a large ranch in Paraguay to flee to, I worry very much that he will somehow be able to subvert the last standing rules of our country and become the dictator he so obviously desires to become.
My only hope is a platoon of honorable men, armed with the appropriate paperwork one day brings the man to justice.
John Freeman
The ironies that emerge from the Hicks case are beyond number.
-The gag order is a tacit admission by the US government that Hicks was, in fact, tortured.
-Incarcerated at Guantanomo among the "worst of the worst" according to Rumsfeld, Hicks pled guilty to 35 counts of collusion with terrorists, including fighting for the Taliban and supporting Al Qaeda. Hicks must be one of the most clearly guilty, otherwise, why would his trial be the first? And yet he receives a nine month sentence. Is THIS the message we want to be sending terrorists? Is THIS the real indicator of how serious we are about the so-called Global War on Terrorism?
-The prosecuting attorney warned Hicks that if he was only PRETENDING to be a terrorist in order to receive a lighter sentence, he could be convicted of perjury and sent away for a long time.
-The prosecuting attorneys had been expecting a sentence of "two digits" and were fully expecting to prevail in the case. They had no say in the plea agreement and were appalled by it.
-Hicks gag order extends past the upcoming Australian election presumably to prevent any revelations that will further undermine John Howard's already-poor reelection prospects. Hick's early release, in all likelyhood, was a gift from the Bush administration to their faithful follower, John Howard.
-The plea agreement was announced, not surprisingly, on a Friday afternoon, by which time the MSM has packed up and gone home for the weekend.
The Hicks case makes a mockery of the so-called Global War on Terrorism and a mockery of American so-called justice.
Well isn't this just special? Another Soviet day in the neighborhood.